Taking a bank to court - APP Fraud

[Banker2020]

Hi

 

I've come across this article on the BBC website about taking a bank to court.

https://www.bbc.co.uk/news/business-19511542

 

In June 2018 my mother was tricked into transferring £30,000 that was intended for her eldest son to a fraudsters account.

 

Then did not take it to the FOS within the 6 month time frame as there was an ongoing police investigation, and being told she had no case.

 

In February 2019 i took over the case after being sent an email from someone at the BoE showing Nationwide were not adhering to the CHAPS Transfer Manual regulations (see below), so i sent a formal complaint .... then in May 2019 the replied denying this but gave new referral rights to contact the FOS.

 

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Anyway after sending my complaint to the FOS, Nationwide then claimed the new referral rights were sent in error and despite DISP 2.8.2A making perfectly clear they cannot withdraw their consent, the Ombudsman has sided with Nationwide.

 

Quote

 

So it now seems court action is my only option as a Judicial Review is seemingly very expensive.

 

There are other aspects to my complaint to the FOS that i could take to court, but i am thinking the point about Nationwide failing to adhere to CHAPS Manual regulations is the best one, as i believe should a judge agree with me it opens all banks up to being liable to all people who have lost money when using CHAPS payments.

 

This is Nationwide's absurd response which does in no way show that they told my mother  "in easily understandable language and in a clear and comprehensible form, that NW will make a payment solely on the basis of a unique identifier and will not execute it on the basis of the intended recipient's name.

My mother like almost everyone else presumed the name gets checked when sending. (as it does now)

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[edit]S RENEGED ON THE ABOVE..

 

So i ask would you believe my case to be a strong one?

 

What Banking: Conduct of Business sourcebook (BCOBS) regulations would i need to raise .... or better still is there anyone on here who could assist me in taking NW to county court.

 

My belief is should i prove NW have failed to adhere to this regulation, then it could be extremely expensive for all the banks as CHAPS payments total £365 bln per day.
https://www.bankofengland.co.uk/payment-and-settlement/chaps

 

 

 

 

[BankFodder]

Have you sent NW an SAR?  

 

Also what did the FOS say as to why they upheld NW's position that the reference was sent in error and therefore not effective?

[Banker2020]

No i've not sent NW a SAR what would i need a SAR for? The bank the money went to was Fidor Bank, someone has been arrested but they claim to have been a victim of identity theft.

 

Its a disgrace that the FOS have backed NW, quite simply once they've issued referral rights they cannot claim it is an error. The Ombudsman has made a decision on his feelings as opposed to following the FCA Handbook to the way its intended.

 

Below is part of the Ombudsmans letter.

 

 

 

 

 

[Banker2020]

I'm looking into a Judicial Review as the Ombudsman is not following the FCA Handbook; in my appeal to him i used the same DISP 1.6.2 to show the letter NW sent in May 22 2019 was a final response.

 

Here is how it should be read.

 

 

In essence once they've issued referral rights there is no opportunity to change their mind or claim an error. 

 

As you can see the FCA Handbook DISP 2.8.2A is a regulation to stop companies changing their mind

 

Edited August 18, 2020 by Banker2020

[BankFodder]

What downside is there is sending an SAR?

 

You may find something useful about why the "erroneous" reference was sent.  For instance it may have been sent deliberately but then someone else deiced that it was a bad idea but too late to stop it going out.  That kind of thing might strengthen your hand.  But of course if you prefer to not send an SAR, you will never know the strength of the cards you are holding.

 

In terms of suing them, your problem is that at £30K it is well over the small claims limit and so you subject to risk of costs if you lose and of course the bank will be aware of this and they will spare no expense to crush you.

You shouldn't imagine that it is only economics here.  They will take it personally.

 

I would suggest examining whether you might bring a case simply on the erroneous reference to begin with - under BCOBS - claiming a very modest amount, say £100.  

They might try to settle out of court but you would have to refuse an insist on going for a judgment that they did indeed breach their statutory duty and treat you unfairly.  If you succeeded then you would have scored an initial hit and you could then consider your next move.

 

Of course, in principle you would be obliged to accept a settlement or else risk costs - but it seems to me that in the case of a breach of statutory duty there is a public interest in continuing and also even if they paid you £100, the breach would still be continuing.

 

It's all theoretical of course but the idea is to chip away at them making small gains without exposing yourself to serious risk of costs.

 

I really don't understand why you might be unwilling to send an SAR when it is so easy, costs nothing and there is so much at stake

[BankFodder]

The FOS never follows the handbook and in fact the FOS remit is at odds with the handbook.

The FOS attempts to produce a solution which is fair to both sides.

 

The wording in the handbook is couched in a way which clearly puts the interest of the customer first and the obligation is to treat the customer fairly

[BankFodder]

Incidentally what makes you think that the Handbook is intended to apply to the FOS?

 

In fact the FOS remit and the FCA remit which applies to banks amount to diverging parallel lines (if that is at all possible)

[Banker2020]

Thanks for the SAR suggestion, i just never thought of it. Will do it right away.

 

I presume they have to keep all emails on file for a certain amount of time.

 

Shall i just ask for every email in reference to my mother, how would i put it? Thing is this case has been dealt with by seniority so presumably they will hold certain email back.

 

Yes i'm thinking the BCOBS route is the way to go .... but i have no idea what to reference or how to go about it.

[BankFodder]

follow the SAR link.  Keep the request as wide as possible 

[Banker2020]

23 hours ago, BankFodder said:

Incidentally what makes you think that the Handbook is intended to apply to the FOS?

 

In fact the FOS remit and the FCA remit which applies to banks amount to diverging parallel lines (if that is at all possible)

 

They keep on referring to it, in all correspondence as what they must adhere to.

 

Says so on their website i believe.

 

 

 

23 hours ago, BankFodder said:

follow the SAR link.  Keep the request as wide as possible 

Along the lines of.

 

Could you please give me every email and correspondence where (mother name) is mentioned.

[BankFodder]

SAR

[dx100uk]

send it upon her behalf

pers i wouldn't request anything specifically  

just send it.

 

as a side note sadly Nationwide are probably the worst 'bank' (which they never were in the 1st place.!!) of all of them to get money like this back out of .

 

 

[Banker2020]

They've been a disgrace, to issue referral rights and then claim its an error is a complete fabrication. When its an elderley woman in her 70s that obviously cannot earn this sum of money again.

 

If you read the footer issuing the new referral rights they have added the word "already" thus referring to the previous outcome.

 

FOS had more than enough to look into the case, can't but help think they're vindictive by not doing so. The Ombudsman has just backed his adjudicator colleague up, and he was as thick as mince.

[BankFodder]

You may be right but  these arguments are emotive and cut no ice.

 

If you want to make headway you need to be more pragmatic about it

[Banker2020]

The points i raised throughout were FCA and BoE regulations.

 

The FOS decision has been based on a mans feelings and opinion as to whether it was sent by error, when regulations state once referral rights are issued they cannot be withdrawn.

 

Anyway time to move on from that and get NW another way, cheers for your help so far.

 

[Banker2020]

On 29/04/2020 at 21:55, dx100uk said:

typically if you can find new information that was not used during the old Complaint, them the whole thing can be reopened.

 

I had a totally new complaint for NW to get the 6  months open and it didnt work despite them issuing new referral rights as they then claimed it was sent by accident.

 

I have recently sent another new complaint - "This payment was “a sudden increase in spending”, “payment for a large amount” and “a payment to a new Payee”. What actions did the bank take in respect of the provisions of section 5.3.1 of BSI PAS 17271 to ensure that Mrs## was not at risk of becoming a victim of fraud?

 

1. The Data Protection Act 2018 refers to “the prevention or detection crime” [Part 1, paragraph 2(1)(a)], so it appears to me that the receiving bank could have confirmed or denied that the Payee name was #### #### because if it was not #### #### then not proceeding with the payment would have prevented a crime.

2. The new Confirmation of Payee system works on a simple Question and Answer of:
[Q] “Is this the Payee name that is associated with this sort code and account number?
[A] “Yes, no or maybe.”

The DPA2018 has not, as far as I know, been changed to allow for CoP so you could have asked the receiving bank “Is the name on this account #### ####?” within the provisions of the act.
It appears to me that this would have prevented the fraud.

 

And they have sent a letter back refusing to answer it.

 

Is there a rule/regulation that says they have to answer further questions.

[Banker2020]

This is the response from NW refusing to answer the legitimate question i asked.

 

So if you can direct me to any regulation that specifies they cannot ignore questions please do so. As if not its very bad advice. I am aware the FCA have been fining banks for not replying, but that hardly helps me.

 

I will be making a complaint about the FOS, as they in essence told NW thay they will not be looking at my case for where NW are liable. Truly remarkable really.

[slick132]

Hi Banker,

 

Please use your own thread to post info and ask Q's  - https://www.consumeractiongroup.co.uk/topic/423796-taking-a-bank-to-court-app-fraud/?do=findComment&comment=5063174

 

Otherwise you'll have info relevant to your case dotted around on other threads.

 

 

 

[Banker2020]

Is it possible to move them over ... if not i will copy and paste them.

[Banker2020]

Cheers, id not long retyped them

 

IN the other topic you stated its possible just to raise different points to get new referral rights, do you have more info on this?

 

I'm looking through this old FSA report (pdf attached) on complaints which still must apply and all i can find is something that states in DISP as to what a complaint is. ... nothing about being able to send multiple complaints and getting new referral rights.

 

My MP is writing to them about this.

fsa-review-of-complaint-handling-in-banking-groups.pdf

[Banker2020]

DISP states this is a complaint.

 

 

Now the above falls into that category, and after spending the last few hours reading DISP, PRIN and a multitude of FSA and FCA reports on complaint handling and recommendations, there is nothing to suggest a person cannot make multiple different complaints.

 

I called the FCA and they highlighted Principal 6 and Principal 7 

 

 

Ignoring a legitimate complaint is not paying regard to the interests of its customer or treating them fairly.

 

Found points such as this in the FSA report into complaint which obviously still apply.

 

 

 

 

[BankFodder]

I don't want to dampen your enthusiasm too much because it is useful and so is your anger - but you aren't channeling it.

 

The element of Grudge is extremely important when as a litigant in person you settle down to taking on a bank or other large organisation.

 

However your posts and reasoning are at this point verging on rant.  You seem to think that you are dealing with people who will revisit an issue with a fresh mind and with an independence of thought.

They won't.  They have made their decision and they will stick by it until someone else tells them that they are wrong- and that someone else won't be you.

Even the FOS won't change their mind without new information - not merely a new angle on the wording of certain regs.

By making these constant challenges you simply lose credibility and exhaust yourself.

 

Wait and see what an SAR produces - look through it thoughtfully and make a measured decision as to what the new information allows you to do.

You never know, they might even fail to make the disclosure on time which would give you another opening to attack them.  Unlikely - but it does happen.

 

I think that your best course is to stop beating your wings against the window - and wait.